Decision

Decision for Steven Mark Price (OD1113030)

Published 11 January 2024

0.1 In the West Midlands Traffic Area

1. Written Decision of the Traffic Commissioner

1.1 Steven Mark Price (OD1113030)

The restricted goods vehicle operator’s licence, reference, OD1113030, held by Mr Steven Mark Price is revoked under sections 26(1)(a), (c)(iii), (ca), (e), (f) and (h) of the Act. All orders of revocation take effect at 2359 hours on 19 January 2024. No order is made under section 28 of the Act.

As a result of an unsatisfactory investigation by the DVSA a decision was made to call the operator to a public inquiry held at my office in Brimingham on 19 December 2023. The calling in letter for the hearing today was dated 14 November 2023 and was sent to the operator by post and by email to the last addresses given to the Office of the Traffic Commissioner by this operator. I was satisfied that it was more likely than not that one or both of those letters had been delivered and as a result the operator had been given proper notice of the hearing today.

No one attended the public inquiry. There had been emails received that mentioned issues relating to health and that also stated that medical evidence was attached to one of the emails dated 13 December 2023 (but at the end of that same email it also said that Mr Price was still waiting for that evidence). I asked the Team Leader in my office to access all of the emails again and it was confirmed to me that no medical related document had been attached to any email, or received in any other way, from Mr Price as at today. I also noted that there had been no request from Mr Price to adjourn the hearing.

Merely mentioning medical reasons as a reason for not attending a public inquiry is not sufficient for the hearing to be adjourned either upon application for an adjournment being made (not present in this case) or on my own volition as the presiding Traffic Commissioner. There has to be tangible evidence in support, normally from a registered healthcare professional, that details what the diagnosis is, when it was diagnosed and that as a result of the functional limitations caused by that diagnosis the person concerned would be unable to attend the hearing as a witness either in person, or after reasonable adjustments were made; for example by the use of a video link.

Here the evidence presented by Mr Price was not supported by any evidence from a registered healthcare professional, did not explain what the resulting functional limitations were and did not satisfy me that Mr Price was unable to attend the hearing today as a witness with or without reasonable adjustments being made for him to attend. I was therefore not persuaded to adjourn the hearing on my own volition; it was fair and in the interests of justice to make a decision today in the absence of Mr Price just from the papers before me.

The public inquiry bundle was paginated to page 221. In addition there were the copies of emails placed on the file for my attention. There were no other documents before me.

All of my findings of fact are made after applying the civil standard of proof; what is more likely than not to have happened.

The operator had not complied with any of the Case Management Directions (pages 10 and 11 of the bundle) as no maintenance related documents had been received and Traffic Examiner Mr S Bateman had not been sent any raw data or any of the other evidence detailed in those directions.

The operator had not complied with the calling in letter because no financial documents had been received (as per page 7 of the bundle).

It was more likely than not that the operator was no longer of sufficient financial resources because it had failed to send any financial evidence to my office that demonstrated it had access to at least £4,800 as an average balance over the last three months.

The evidence of the DVSA was not in dispute and was accepted by Mr Price in his interview under caution. I further find this evidence from the DVSA is credible, cogent and persuasive and I have accepted it as such.

I therefore find that all of the DVSA allegations of non-compliance are proven. Those proven allegations are repeated and adopted as my own findings of fact for the purposes of this decision. In essence they boiled down to:

(a) Vehicle DA12VDC being stopped on 14 June 2023 when the driver, a Mr Taylor, was not using a digital tachograph card and at a time when his driver qualification card had expired several weeks ago on 24 May 2023; and

(b) At that stop vehicle DA12VDC was transporting a skip full of material that was clearly insecure (see pages 80 and 81 for the photographs) and as a result there was a real risk to pedestrians, cyclists, motorcyclists and other road users from items falling from the skip and hitting them; and

(c) An immediate prohibition was issued for vehicle DA12VDC on 14 June 2023 as well as a £300 fixed penalty notice (the highest level of fixed penalty that can be issued); and

(d) Vehicle DA12VDC was specified on this operator’s licence on 31 May 2023 but was, in fact, being operated by AJB Skip Hire Ltd (of which Mr Price was a director from 16 May 2023 until 11 September 2023) which did not hold any type of operator’s licence; and

(e) This was admitted by Mr Price in his interview under caution (see page 87 of the bundle); and

(f) Mr Price also admitted that AJB Skip Hire Ltd were also operating vehicles DX57HBP and BX55UAH (see page 88 of the bundle) when it had no operator’s licence; and

(g) All vehicle were being parked at Mr Price’s home address (page 88); and

(h) Mr Price accepted in his interview under caution that the authorised operating centre for this licence, OD1113030, had not been used for 5 years (page 86).

It was therefore more likely than not that Mr Price was lending his operator’s licence to AJB Skip Hire Ltd.

It was more likely than not that AJB Skip Hire Ltd, of which Mr Price was a director at all material times, was operating without an operator’s licence because (a) it did not have an operator’s licence and (b) you cannot lend an operator licence to another legal entity; they are not transferrable.

It was more likely than not that Mr Price knew he could not park any vehicles at his home address for the past 5 years because (a) the licence checklist dated 09 September 2022 and signed on 15 September 2022 by Mr Price (pages 29 to 40) clearly states the operating centre was “The Yard, Brandon Way, West Bromwich, B70 9PW” (page 34), (b) the actual physical copy of the operator’s licence records that operating centre on it and (c) the “Notes” section at the end of the operator’s licence (specifically at note number 6) deals with the use of unauthorised operating centres and how an address not first authorised by a Traffic Commissioner cannot be used.

In addition the Upper Tribunal in the appeal cases of LA & Z Leonida T/A ETS 2014/024 held that:

“…It does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or person’s responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means that they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general…”

That appeal case followed on from an earlier Upper Tribunal appeal; MGM Haulage and Recycling Ltd 2012/030 where it was made clear that all operator’s are deemed to know the advice and guidance that is in the public domain and therefore cannot argue that they did not know or did not understand. Here, for example, the Statutory Documents issued by the Senior Traffic Commissioner for Great Britain have been in the public domain for nearly 15 years and are extremely clear in Statutory Document number 4 about the use of authorised and unauthorised operating centres.

As a result, whilst Mr Price claimed in his interview under caution that he did not know that parking vehicles at his home address was wrong, in light of the above paragraphs I simply do not accept what he said and, as per the two appeal cases I have cited, any argument based on a lack of knowledge will fail, especially when the issue at hand here is such a basic element of compliance.

In addition, for 5 years Mr Price allowed, caused or permitted an offence to occur contrary to section 7 of the Act by the use of an unauthorised operating centre.

No application to add a new operating centre has been made and having just checked the electronic licensing system the specified operating centre on this licence remains unchanged. It is therefore more likely than not, given the history in this case, that the vehicles are still being parked unlawfully at an unauthorised address.

The statement of expectation made by Mr Price when the licence was granted had been unfulfilled for many years namely that heavy goods vehicles would normally be kept (when not in use) at the specified operating centre.

Driver Mr Taylor clearly did not have any, or any effective, check made of his driver qualification card before he drove vehicle DA12VDC on 14 June 2023. Had any effective check been made then Mr Taylor would not have been able to drive any LGV as his driver qualification card expired on 31 May 2023.

The general undertakings on the operator’s licence relating to the laws relating to driving and operation of vehicles under the licence being observed, tachographs, not using an unauthorised operating centre and the safe loading of trailers were breached.

Material changes since the operator’s licence was granted occurred and were not reported to the Traffic Commissioner.

There were some positives; Mr Price co-operated with the DVSA, he made full admissions, he accepted his failings and he only blamed himself. I have given him credit for them. I also note from one of the recent emails dated 13 December 2023 that Mr Anthony Butts is employed as a transport manager but it is unknown whether he is a transport manager CPC holder, if he is when he last did refresher training and I repeat what I said in paragraph 8 above and add that without any tangible evidence before me I cannot, in any meaningful way, assess what, if any, difference Mr Butts has made to compliance in his short tenure to date and what difference he might make going forward. I therefore give some, but qualified, credit for the employment of Mr Butts.

Balancing the negatives (which attract significant weight as a result of their severity and long standing nature) against the positives it is clear that the negatives significantly outweighed the positives when assessing the operator as it appears before me today.

I determine that it is proportionate to place the entry point for regulatory action, after considering Statutory Document Number 10, annex four therein, into the “Severe to Serious” category.

I again take account of the positives when I ask myself the question detailed in the appeal case of Priority Freight; do I trust the operator to be compliant in the future? However, despite as much credit as I can give to Mr Price the lack of any up to date evidence, his failure to attend and the subsequent findings of fact that I have made lead me to answering that question in the negative; I do not trust this operator to be compliant in the future.

After repeating all of my findings again (including the credit that I have given), from the acts and omissions of Mr Price it is proportionate for me to determine that he is now unfit to hold an operator’s licence. That is a fundamental material change as it is a mandatory requirement that the holder of a restricted goods vehicle operator’s licence must not be unfit. I therefore must revoke the operator’s licence under section 26(1)(h) of the Act.

The operator has failed to satisfy me that it remains of sufficient financial resources. That is a fundamental material change from when the operator’s licence was granted. Such is the importance of that material change that it is now proportionate that I revoke the operator’s licence under section 26(1)(h) of the Act.

The use of an unauthorised operating centre for 5 years is totally unacceptable and I repeat all I have previously said on this subject. The gravity of doing this is such that it is proportionate to revoke the operator’s licence under section 26(1)(a) of the Act.

It is also proportionate to revoke the operator’s licence under my other discretionary powers pursuant to sections 26(1)(c)(iii) [the immediate prohibition], 26(1)(ca) [the £300 fixed penalty notice], 26(1)(e) [breach of the statements of expectation], 26(1)(f) [breach of the general undertakings] and 26(1)(h) [material changes since the licence was granted].

All orders of revocation take effect at 2359 hours on 19 January 2024.

Any operation of vehicles after that time and date is unlawful because this operator will no longer hold an operator’s licence. DVSA are asked to impound any vehicle operated contrary to my decisions and the operator now has actual knowledge of that power.

Given the open way that Mr Price answered the questions he was asked in his interview under caution I have stepped back from making any determination under section 28 of the Act.

Traffic Commissioner Mr M Dorrington
The Traffic Commissioner for the West Midlands

19 December 2023.